Irints v Yawa [2022] PGPLC 3; DC8097 (12 August 2022)

DC8097

PAPUA NEW GUINEA

[IN THE PROVINCIAL LAND COURT OF JUSTICE]

PLC. 04 of 2021

BETWEEN

Gabi Irints

Appellant

AND

Abel Yawa

1^st Respondent

AND

Local Land Court Magistrate Tera Dawai

02^nd Respondent

Lae: S.Lavutul

2022: 04^th, 08^th, 12^th August

PROVINCIAL LAND COURT PRACTICE & PROCEDURE- Section 50 Land Dispute Settlement Act – Provincial Land Court Appeal Process–Sections 54, 55, 56, 57, 58, 59 & 60- Filing of an Appeal outside the three (3) months period after the date of the Local Land Court Decision and after the ending of the 12 months.

APPEAL: APPEAL AGAINST DECISION OF LOCAL LAND COURT.

Section 54 (1) Land Dispute Settlement Act, Subject to this section, a person aggrieved by a decision of a Local Land Court may appeal within three months after the date of the decision to the Provincial Land Court.

Section 54 (2) Land Dispute Settlement Act, Where the Provincial Land Court is of opinion that it is desirable in the interests of justice to do so, it may, whether or not the time fixed for appeal under Subsection (1) has expired, extend the time fixed for appeal, but leave shall not be granted after the end of the period of 12 months after the date of the decision appealed against.

Section 18. AGREEMENTS.

(1) If an agreement is reached between the parties to a dispute as to the whole or part of the dispute, the Land Mediator shall–

(a) record that an agreement has been reached; and
(b) unless he thinks it inappropriate to do so–record the terms of the agreement; and
(c) ensure that the terms of the agreement are understood by the parties and are formally and publicly acknowledged by or on behalf of the parties; and
(d) where the terms of the agreement are recorded–forward a copy of the record to the nearest Local Land Court.

(2) Where the terms of an agreement include agreement as to the location of a boundary, the Land Mediator shall–

(a) as far as practicable, walk the boundary with the parties; and
(b) unless he thinks it impracticable to do so, direct the parties–

(i) to inform him of all prominent natural features located on the boundary; or
(ii) to mark the boundary in such manner and with such marks as he thinks appropriate; and

(c) record the boundary in such manner as he thinks will enable it to be readily identified; and
(d) record the names of not less than three witnesses who are prepared to testify to the position of the boundary as determined in the agreement.

(3) A Local Land Court to which a record is forwarded under Subsection (1) shall forward copies of the record–
(a) to the Provincial Land Court for the province in which the land is wholly or partly situated; and
(b) on request, to any Local-level Government in whose area the land in dispute is wholly or partly situated; and
(c) on request, to the parties to the dispute or any of them.

Section 19. APPROVAL OF AGREEMENTS.

(1) The parties to an agreement may apply to a Local Land Court to have the agreement approved.

(2) On receiving an application under Subsection (1), the Court shall make such inquiries as it thinks necessary to ensure that–

(a) the terms of the agreement are fully understood by the parties; and
(b) where a party to the agreement consists of more than one person, a substantial majority of the persons comprising the party concur with the terms of the agreement; and
(c) the agreement is not in breach of any law, or contrary to natural justice or public policy.

(3) Where the Court is not satisfied as to any matter specified in Subsection (2), it may–

(a) mediate between the parties in order to reach a satisfactory agreement; or
(b) by order direct the Land Mediator who mediated the dispute or another Land Mediator specified in the order to conduct further mediation, with, if it thinks fit, a direction as to how any defect in the original agreement might be overcome.

(4) Where further mediation has been carried out under Subsection (3)(b) and an agreement has been reached and recorded, the parties may re-apply to the Court to have the agreement approved in accordance with this section.

(5) Where the Court is satisfied as to the matters specified in Subsection (2), it may approve the agreement.

(6) An agreement approved under Subsection (5) has effect as an order of a Local Land Court made under this Act.

Section 20. EFFECT OF AGREEMENTS.

Until approved under Section 19–

(a) an agreement is, in any legal proceedings, evidence of the interests of the parties to the agreement in the land in dispute as at the date of the agreement; but
(b) the agreement or any admission or concession made by a party in arriving at the agreement, is not binding on a party, his heirs, successors or assigns.
Cases Cited

Mondo v Dau [2021] PGPLC 1; DC6096 (15 September 2021),
Lou v Soni [2020] PGPLC 1; DC4058 (31 August 2020)
John Mondo v Steven Moses & Vincent Dau (2019) DC4025
Gaigo on behalf of Laurina Clan & others v The State [1979] PNGLR 202

References
The Land Dispute Settlement Act

Appearance

Gabi Irints – Appellant Appeared In Person
Respondent Abel Yawa Appeared In Person

REASONS FOR DECISION

12^th of August, 2022

Samuel Lavutul, Principal Magistrate: This matter came before me by way of a Notice of Appeal filed by the Appellant Gabi Irints on the 20^th day of January 2021 moving the court to quash the Local Land Court Decision dated 19^th of December 2020 under the following grounds of appeal;

(1). The Court at Mutzing announced that the ownership of the land Ngarunkung was vested in the Appellant when the Respondent failed to present his evidence he was required by the court but when the decision came out the ownership of the land was given to the Respondent; or

(2). The Appellant already had a Local Land Court order of the 18^th of December 2002; or

(3). The Local Land Court lacked jurisdiction as ownership issue of the Ngarunkung land was already settled by a Local Land Court on the 18^th of December 2002

2. The Appellant paid an appeal filing fee of K300.00 dated the 20^th January 2021 on OR# R0001246061 and filed before the court as proof.

Background

3. Having perused the documents annexured to this appeal the decision being appealed against was made by the Local Land Court on the 09^th of December, 2020 and the Appellant filed his appeal on the 20^th of January 2020, in which I confirmed it is within the requirements of Section 54 (1) of the Land Dispute Settlement Act. I have jurisdiction to hear this appeal. I will proceed first to hear out the respective parties preliminary submissions.

Appellant Gabi Irintz -Submission

4. I note from the Appellant Gabi Irintz’s preliminary submissions on the 04^th of August 2022 he stated the following;

(1) I appeal against the Decision over Ngarunkung Land and not Sada Saga Land which is a piece of land for gardening.

(2) He added Sada Saga mentioned on the documents is land used for gardening, or cultivation of gardens.

(3) Appellant Gabi Irintz told the Local Land Court set at Mutzing on the 09^th of December 2020. They were there referred by the Local Land Court Magistrate Tera Dawai amongst their clan. And he added whilst they were trying to settle the issue they surprised by the presence of Respondent Able Yawa of the Achumampung clan. They met and they had their Application for Approval of Agreement accepted by the Land Mediators and approved by the Court.

(4) The Appellant added the Respondent Able Yawa brought before Magistrate Dawai their Application for Approval of Agreement and he signed it and it became an order of the Court.

(5) The Appellant stressed that is why he has filed the appeal to challenge the process before the Provincial Land court.

5. On the 08^th of August 2022, Mr. Wapi Irintz biological brother of the Appellant was present in court and gave preliminary account in their favour when allowed by the court to make further submissions to clarify his standing and what had transpired regarding their issues over the court awarding ownership to the Respondent stated; He is the biological brother of Gabi Irintz and that PNG Power used to engage and contracted him to clear their power pylons and that the contract was given to him since the 1980s until today.

6. He added now that PNG Power is to do a pay-out for using our land to erect their power pylons the Respondent Abel Yawa came into the scene. He stated prior to this there were no disputes and the Respondent Abel Yawa is telling lies there was no dispute. He further clarified they are from the Mampim clan and Respondent Abel Yawa is from the Atchu clan.

7. In addition, the Appellant Gabi Irintz whilst addressing court, told the court his brother and Appellant had given him his permission to stand-in on their behalf. He stated he stood in and represented him on the 09^th of December 2020 at 1.30pm at Umi/Atzera LLG, Markham, Morobe Province. He added the Respondent was not present in court and Local Land Court Magistrate Tera Dawai told him that he will confirm the Decision of the Local Land Court of the 18^th of December, 2002.

8. Mr. Gabi Irintz added he was asked by the Local Land Court Magistrate Tera Dawai to go and see Michael Steven, the Land Officer. The Land officer then advised him that they would go down to the Land Court House to get their orders and would then get their monies over the use of their land from PNG Power. Mr. Gabi Irintz explained that when they came down to see the Land Court Clerk Mr. Nick Sawong, he then told him that somebody else has picked up their order. Mr. Sawong told him that it was Respondent Abel Yawa that had picked up the order. He then told Mr. Sawong that Respondent Abel Yawa was not present before the land court and the order was not in his favour. Mr. Sawong then encouraged me to file an appeal against the decision.

Respondent Abel Yawa - Submission

9. In his preliminary submission Respondent Yawa; he stated he is a member of the Mapung clan and that he had a case between himself and Wabi Irintz the brother of the Appellant. He added the court ruled in his favour and that ownership over Sadasaga Land was awarded to him in 2020 which was presided upon by Magistrate Tera Dawai. And they had a dispute over the said Sada saga land and that they had two sessions of mediation.

Findings and Deliberations

10. Despite the grounds of appeal set out by the Appellant above, I have given careful consideration to the parties’ respective preliminary submissions. I find some clarity in the respective submissions.

11. I find the Appellant and his brother raised the issue that they had a previous Local Land Court Decision over their said land to wit; “Ngarunkung Land” dated the 18^th of December, 2002 in which a copy of that Decision is annexured. Thus confirms that the ownership of the Ngarunkung Land is vested in the Mampim Clan in which the Appellant Gabi Irintz and Wapi Irintz are members.

12. I find the Application for Approval of Agreement dated the 07^th of December 2020 to be defective in that it does not carry the names of the presiding Land Mediators if any; I find only two (2) anonymous signatures. Secondly, I also uncovered that only the Respondent Abel Yawa signed and his signature is the only signature on the Application for Approval of Agreement. Despite the fact the name of Wabi Irintz is mentioned as co-applicant it is obvious he did not endorse the purported Application for Approval of Agreement as his signature is not on the Form 10. I am of the view if Wabi Irintz was an applicant then his signature should have been on the Application for Approval of Agreement dated the 07^th of December, 2020. It is a legal requirement that all parties’ names and their signatures must be on the Application for Approval of Agreement includes all the terms and conditions pertaining to the purported agreement and must be dated. I concur and adopt the views in the matters of Mondo v Dau [2021] PGPLC1; DC6096 (15 September 2021), Lou v Soni [2020] PGPLC1; DC4058 (31 August 2020), John Mondo v Steven Moses & Vincent Dau (2019) DC4025, pertaining to Applications for Approval of Agreements.

13. I am also of the view the Local Land Court Magistrate made an error by endorsing and converting the defective Application for Approval of Agreement on the 18^th of December 2020 into a Local Land Court Decision. I also concluded that the Appellant and his brother Wapi Irintz were not present, thus natural justice was not observed by his worship as per the view in the matter of Gaigo on behalf of Laurina Clan & others v The State [1979] PNGLR202.

14. I find His Worship failed to observe and comply with the mandatory requirements of Section 19 (2) (a) (b) (c) of the Land Dispute Settlement Act which directly concerns considerations pertaining to the Approval of Agreements. Section 19 (2) (a) (b) (c) stipulates; “On receiving an application under Subsection (1), the Court shall make such inquiries as it thinks necessary to ensure that–

(a) the terms of the agreement are fully understood by the parties; and
(b) where a party to the agreement consists of more than one person, a substantial majority of the persons comprising the party concur with the terms of the agreement; and
(c) the agreement is not in breach of any law, or contrary to natural justice or public policy.”

Ruling

15. I hereby conclude that due to the defects in the Application for Approval of Agreement dated 18^th of December 2020; non –compliance with the mandatory requirements of Section 19 (2) (a) (b) (c) of the Land Dispute Settlement Act and the fact that natural justice was not observed by the presiding magistrate the Decision of the Local Land Court shall not stand. I hereby quashed the Decision of the Local Land Court dated 18^th of December, 2020.

Order

1. That the Appeal is upheld

2. That the Decision of the Local Land Court dated the 18^th of December, 2020 is quashed.

3. That the Respondent Abel Yawa is at liberty to register a fresh dispute with the District Land Mediators.

4. The Appeal fees of K300.00 to be refunded to the Appellant forthwith.